FEDERAL COURT OF AUSTRALIA

MZYYO v Minister for Immigration and Citizenship [2013] FCA 49

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Applicant pay the Respondent’s costs of and incidental to the application.

Note:    Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

introduction

1    This proceeding is an application under s 476A of the Migration Act 1958 (Cth) to review a decision of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the applicant. The applicant had been found to be a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”). However, the Minister refused to grant a visa on the basis that the applicant failed the “character” test in subs 501(6)(aa)(i) of the Act.

2    The applicant contends that in doing so the Minister failed to properly take Australia's international obligations into account - in particular Australia's non-refoulement obligation under Art 33 of the Convention. This obligation requires that Australia not expel or return the applicant to a country where he has a well-founded fear of persecution on grounds recognised in the Convention. The applicant also seeks an extension of time, under s 477A of the Act, within which to make his application.

3    For the reasons I set out below the application for an extension of time is granted, but the application for review of the Minister’s decision must be refused.

The FACTS

4    The applicant is a 33 year old man of Faili Kurdish ethnicity of Shia Muslim faith. He was born in Iraq in 1979 but he and his family were expelled to Iran in 1980 and stripped of their Iraqi nationality. It appears that from 1980 to 1981 the Saddam Hussein regime in Iraq expelled an estimated 200,000 to 300,000 Faili Kurds to Iran, and changed the law to strip them of their citizenship.

5    The applicant left Iran illegally, and on 13 March 2010 arrived at Christmas Island which is an “excised offshore place” under the Act, doing so without a visa or other legal right to enter Australia. He was therefore an “offshore entry person” and an “unlawful non-citizen” for the purposes of the Act. He was precluded from making a valid application for a visa unless the Minister made a decision under s 46A of the Act that it was in the public interest that he be permitted to do so. The applicant was put into immigration detention, as required by the Act.

6    He claimed refugee status in a Refugee Status Assessment he sought on 22 May 2010. He was unsuccessful in his claim both before a departmental officer and before an Independent Merits Review (“IMR”). However, he was then successful in an application for judicial review of the rejection of his claim. His claim was remitted to an IMR to be considered afresh.

Recognition as a refugee

7    On 2 August 2011 the IMR found that he was a stateless person with a former habitual residence in Iran, and that as an “undocumented” Faili Kurd he had a well founded fear of persecution in Iran. The IMR recommended that he be recognised as a refugee under the Convention.

8    The IMR accepted that the applicant was denied any identification documents and that the Iranian religious government authority had abused and humiliated him, and extorted money from him. The IMR found that the physical mistreatment and the ongoing discrimination and exploitation (including preventing his access to education, medical help, movement and employment to the extent that it imperilled his subsistence) engendered constant fear in the applicant and amounted to persecution.

9    Unfortunately, the process of claims and reviews meant that the applicant was held in detention for a lengthy period and the medical evidence indicates that he became depressed, frustrated and angry.

The criminal offences

10    While in detention, on 16 May 2011 and 3 August 2011, the applicant committed three criminal offences. On 16 May 2011 after learning that he was going to be kept in the Darwin detention centre for a further period, the applicant damaged eight computers and associated equipment in the computer room at the centre. On 3 August 2011, when some other detainees were about to be released from the Darwin detention centre, the applicant tried to stop them from leaving. Commonwealth officers employed at the centre tried to stop him, and during the course of this intervention the applicant took out a small knife and cut one officer’s wrist.

11    In respect of the first offence the applicant was charged with destroying or damaging the property of a public authority, to which he pleaded guilty in the Northern Territory Court of Summary Jurisdiction on 5 August 2011. He was convicted and ordered to pay compensation in the amount of $2040, to be imprisoned for two months and then released on a $1000 good behaviour bond.

12    In relation to the second and third offences the applicant was charged with conduct causing harm to a Commonwealth official and the possession of a weapon, to which he pleaded guilty in the same hearing on 5 August 2011. He was convicted and sentenced to 7 months imprisonment, with the first two months to be served concurrently and the remaining five months suspended, subject to the good behaviour bond. In respect of the charge of possession of a weapon the applicant was convicted without penalty.

Refusal of Protection visa

13    On 19 December 2011 the Minister allowed the applicant to apply for a protection visa by exercising his power under s 46A(2) of the Act, and the applicant so applied on 23 December 2011.

14    On 24 January 2012 the Minister gave notice that he intended to consider refusing the applicant’s visa application on “character” grounds under subs 501(1) of the Act. On 15 February 2012 the applicant’s lawyers provided detailed submissions opposing refusal of a visa on such grounds.

15    On 27 March 2012, acting personally, the Minister refused the application for a protection visa on the basis that the applicant failed the character test in subs 501(6)(aa)(i) of the Act. It is this decision which the applicant seeks to review pursuant to s 476A of the Act.

Granting of Bridging visa

16    On 17 April 2012, the Minister exercised his power under s 195A of the Act to grant a Bridging (Removal Pending) visa to the applicant (“the Bridging Visa”). This provision empowers the Minister to grant a visa to a person who is in immigration detention, whether or not the person applies for such a visa and whether or not the person meets the ordinary requirements for such a visa contained in the Act or the Migration Regulations 1994 (Cth) (“the Regulations”).

17    The Bridging Visa was granted subject to Conditions 8541, 8542 and 8543 as required by schedule 8 of the Regulations. Condition 8541 requires that the holder of a bridging visa must do everything possible to facilitate his or her removal from Australia, and must not attempt to obstruct efforts to arrange and effect such removal. Condition 8542 requires that the applicant “must make himself or herself available for removal from Australia in accordance with instructions given…by Immigration…” Condition 8543 requires that the applicant “attend at a place, date and time specified by Immigration in order to facilitate efforts to arrange and effect his or her removal from Australia.”

18    However, by a letter from one of the Minister’s officers dated 17 April 2012, under cover of which the visa was provided, Condition 8541 was expressly waived. The letter relevantly stated:

This visa will enable you to remain in Australia temporarily with access to certain Centrelink and Medicare benefits. In granting this visa, the Minister has indicated that he intends to reconsider your circumstances in three years. Your behaviour and compliance with Australian laws over that period will be a significant factor in the Minister's future consideration of your case.

The conditions associated with the [bridging visa] you have been granted are attached. In regard to condition 8541, you will not be asked to make any arrangements to depart Australia until the Minister reviews your case in three years, unless you fail to comply with the conditions of this visa.

While Conditions 8542 and 8543 were not expressly waived, it must be seen that by excusing the applicant from making arrangements to depart Australia for three years the letter necessarily had an effect on those conditions too.

The Minister’s decision to refuse a protection Visa

19    The Minister provided a statement dated 27 March 2012 setting out his reasons for refusing a protection visa (“the Reasons”). In the Reasons he found that, by virtue of s 501(6)(aa)(i) of the Act the applicant did not pass the character test for the purpose of s 501(1) of the Act. Section 501(1) provides:

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

20    Section 501(6)(aa)(i) provides:

(6)    For the purposes of this section, a person does not pass the character test if:

(aa)    the person has been convicted of an offence that was committed:

(i)        while the person was in immigration detention;

That the applicant failed the character test was common ground, it being conceded by the applicant’s lawyers in their submissions of 15 February 2012. The real issue was whether – given that the applicant failed the character test – the Minister should have exercised his discretion to refuse the visa.

21    In exercising his discretion the Minister stated that he had regard to a number of relevant considerations. He noted that, because he was making the decision personally, he was not bound by the document “Direction No 41 - Visa refusal and cancellation under s 501” (“Direction 41”) - which is a ministerial direction under s 499 of the Act. He also noted that Direction 41 predated the introduction of subs 501(6)(aa)(i) of the character test.

22    The first consideration set out by the Minister was under the heading “Criminal Conduct”. This related to the fact that the applicant had been convicted of:

(a)    causing harm to a Commonwealth official which was a violent offence involving the cutting of a person with a knife, committed against a Commonwealth official who was at that time undertaking his duties as a guard; and

(b)    destroying or damaging public authority property, and manufacturing or possessing a weapon.

23    The Minister also noted that the applicant had been in immigration detention since his arrival in Australia (apart from his two months in jail) and, therefore, his behaviour had not been tested in the Australian community.

24    The second consideration set out in the Reasons was under the heading “International Obligations”. Under this heading the Minister noted as follows:

[13] An Independent Merits Review found that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention, and therefore meets the criterion for a Protection visa set out in s36(2) of the Act. I accept that [the applicant] has a well-founded fear of being persecuted in the foreseeable future if he were returned to Iran, and that Australia has a non-refoulment obligation to [the applicant] in respect of Iran. I also note the finding of the Independent Merits Review that [the applicant] is stateless, and that there is no evidence to suggest that [the applicant] has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act or of Article 1E of the Convention.

[14] I note, however, that a decision to refuse [the applicant] a protection visa on character grounds is not, in itself, a decision to remove [the applicant] from Australia.

25    Under the heading “Other Considerations” the Minister then referred to various character references relied on by the applicant, that the applicant had no other recent history of offending, and that he had not breached any judicial orders. The Minister noted the applicant’s submission that he had accepted full responsibility for his actions at the earliest opportunity and was unlikely to reoffend. He also noted that the applicant had been receiving regular psychological treatment.

26    The Minister stated that he had given significant weight to his conclusion that engaging in criminal behaviour, particularly violent behaviour, while in immigration detention is serious. He considered that while the applicant had expressed remorse “the Australian community has an expectation that people who seek to remain in Australia will be of good character.”

27    The Minister considered that:

[The applicant’s] behaviour demonstrates a fundamental disrespect for Australia[n] laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s 501(6)(aa), that behaviour should attract consequences under the Migration Act. Taking into account the expectations of the Australian community, I also consider that these consequences should provide a disincentive for others who may be contemplating engaging in criminal behaviour while in immigration detention.

28    The Minister decided to exercise his discretion under subs 501(1) to refuse to grant a protection visa, again noting his view that “a decision to refuse a visa is not, of itself, incompatible with Australia meeting its international obligations in the particular case”.

The application for extension of time

29    The applicant was advised of the Minister’s decision to refuse him a visa by written notice dated 4 April 2012. Subsections 477A(1) and (3) of the Act set a 35 day time limit from the provision of such notice for an application to the Court under s 476A. Although required to be filed by 9 May 2012, the application was not lodged until 31 May 2012, and was therefore 22 days out of time.

30    Section 477A(2)(b) of the Act provides that the Court may extend the time, on the making of a written application, if the Court is satisfied that “it is necessary in the interests of the administration of justice to make the order”. The authorities set out various factors that may inform the discretion to extend a time limit including the acceptability of any explanation for the delay in filing the application, the length of the delay, the existence of any prejudice to the other party arising from delay, the substantial merits of the application, and consideration of fairness as between the applicant and other persons in a like position: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349 per Wilcox J, and the authorities there cited.

31    The length of delay in the present case is not great. The applicant deposes to the reasons for the delay including that he was in immigration detention for much of the time and unable to access legal assistance, that he did not have an opportunity to receive appropriate legal advice regarding his options until very close to the final date for filing, and that he speaks little English. It is apparent from the applicant’s affidavit that he was active in the pursuit of his rights. The Minister does not assert any prejudice arising from the delay of 22 days, and neither consents to nor opposes the application for an extension. In all circumstances I am satisfied that the applicant ought be granted an extension of time.

The application for review

32    It is uncontroversial that the Court has original jurisdiction in this matter pursuant to s 476A of the Act. The originating application for review dated 31 May 2012 seeks:

[1]    A declaration that the decision of the Minister is affected by jurisdictional error;

[2]    An order of certiorari that the decision be quashed; and

[3]    An order of mandamus that another decision be made.

33    The application claims that the Minister’s decision is affected by jurisdictional error because:

(a)    in deciding to refuse to grant the applicant a protection visa, the Minister failed to take into consideration Australia's international obligations in respect of the applicant’s circumstances (Ground 1); and

(b)    the Minister misunderstood the effect of a decision to refuse the application for a protection visa on character grounds (Ground 2).

The international obligation relied on by the applicant is Australia's non-refoulement obligation under Art 33 of the Convention.

Discussion

34    Article 33(1) of the Convention provides:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

35    Both grounds of appeal turn on the requirements of this obligation and are inextricably interrelated. The applicant argues that the Minister did not properly take Australia's non-refoulement obligation into consideration in making his decision. He contends that the Minister misunderstood the effect of the decision to refuse a protection visa on character grounds, and that “in reality” the Minister excluded this obligation from consideration because of an erroneous understanding of the effect of the later decision to grant the Bridging Visa.

36    The applicant argues that the effect of the Minister’s refusal to grant a protection visa meant that no further decision was required to remove him from Australia, and that the Minister’s decision is therefore incompatible with the non-refoulement obligation. On this argument, refusal of a protection visa to the applicant meant that he was an unlawful non-citizen required to be detained under s 189 of the Act and, as a detainee, removed from Australia as soon as reasonably practicable pursuant to s 198.

37    Section 189(1) provides:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

38    Subsection 193(1)(a)(iv) provides:

(1)    Sections 194 and 195 do not apply to a person:

(a)    detained under subsection 189(1):

    …

(iv)    because of a decision the Minister has made personally under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person;

39    Section 198(2A) provides

An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    the non-citizen is covered by subparagraph 193(1)(a)(iv); and

(b)    since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; …

The applicant argues that, once the requirements of the section are met, s 198 imposes an imperative duty upon the relevant officer to remove him from Australia as soon as reasonably practicable: see M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (“M38/2002”) at [22] to [33].

40    The applicant also notes that the Bridging Visa contains Condition 8541 that requires the holder do everything possible to facilitate his removal from Australia. He argues that although the Minister has at present waived this requirement, it can be reactivated at a later time. He contends that if that were to occur he would be in breach of his visa if he did not facilitate his own removal, that his Bridging Visa would stand to be cancelled, and that he would have no effective legal recourse. He also argues that Conditions 8542 and 8543 have not been specifically waived and the Minister could activate them so as to effect his removal from Australia.

41    Similarly, the applicant points to cl 070.511(c) of the Regulations which provides that, if the Minister is satisfied that his removal from Australia is reasonably practicable or if he has breached a condition, the Minister may remove the Bridging Visa by giving written notice at any time: see Kumar v Minister for Immigration and Citizenship (2009) 176 FCR 401 (‘Kumar”).

42    The applicant points to passages in three decisions of this Court in support of his argument.

43    In NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 (“NATB”) per Wilcox, Lindgren and Bennett JJ, the Full Court considered when removal was “reasonably practicable” under s 198(6) of the Act. At [52] their Honours explained:

…First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of “practicable”… Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

44    Subsequently in M38/2002 per Goldberg, Weinberg and Kenny JJ the Full Court again considered the obligation against non-refoulement in the context of s 198(6) of the Act. In dealing with when removal should be seen as “reasonably practicable” their Honours explained at [70] to [71]:

[70] The appellant's contentions on this appeal did not rely on any conception of reasonable practicability. Rather, the appellant’s argument was that, in providing for a detainee’s removal from Australia, s 198(6) was ambiguous. This was because s 198(6) required a detainee to be taken out of Australia but said nothing about his or her destination. Because of this ambiguity, s 198(6) was, so the appellant said, susceptible of a construction which was consistent with the obligation against non-refoulement. The appellant submitted that s 198(6) was to be construed as not authorising the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons.

[71] For the reasons about to be stated, s 198(6) is not susceptible of this construction. The appellant’s submission is misconceived, for by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act.

45    In Kumar at [80] to [81] the Full Court per Stone, Greenwood and Besanko JJ, considered both M38/2002 and NATB. Their Honours said:

In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 the Full Court of this Court considered whether an officer who was performing his or her duty under s 198(6) of the Act was bound to consider whether the removal of an unlawful non-citizen would constitute refoulement, contrary to Australia's obligations. In other words, should s 198(6) be read as limited by an obligation against non-refoulement? The Full Court decided that question in the negative and said (at [70]-[71]):

Their Honours then quoted the passage from M38/2002 set out at [44] above.

46    At [81] their Honours referred to NATB and observed that:

…the Court rejected an argument that an officer, in exercising the duty in s 198(6), was bound to take into account what was likely, or even virtually certain, to befall a person once the person had been admitted by, and into, the receiving country. Such a consideration was not a relevant consideration, even if the likely effect on the person involved death, torture, persecution or other mistreatment. The Full Court made observations on the considerations relevant to the concept of “reasonably practicable” in s 198(6) of the Act (at [52]):

    Their Honours then quoted the passage from NATB set out at [43] above.

47    The applicant contends that these three decisions show that the effect of the refusal of a protection visa on character grounds is that the applicant stands to be removed from Australia, notwithstanding that to do so would be incompatible with Australia meeting its non-refoulement obligation.

48    I do not agree. Firstly, the Minister clearly considered Australia's non-refoulement obligation. The IMR found that the applicant had a well founded fear of persecution in Iran. At paragraph 13 of the Reasons (set out in full at [23] above) the Minister stated:

I accept that [the applicant] has a well founded fear of being persecuted in the foreseeable future if he were returned to Iran, and that Australia has a non-refoulement obligation to [the applicant] in respect of Iran.

The Minister thereby accepted that the applicant could not be expelled or returned to Iran because of Australia’s non-refoulement obligation.

49    The Minister also accepts that this obligation extends to any country where the applicant has a well-founded fear of persecution on account of his race, religion, nationality, membership of a particular social group or political opinion. Importantly, he concedes that the power under s 198 of the Act to remove a detainee from Australia must be treated as subject to the non-refoulement obligation, and that this means that he has no statutory power to remove the applicant from Australia to any country where the applicant would have a well-founded fear of persecution for grounds recognised in the Convention.

50    Despite the Minister's concession, the applicant relies on the passages in NATB, M38/2002 and Kumar set out above and maintains that the Minister’s power to remove him is not subject to the non-refoulement obligation. He argues that, although the Minister has presently conceded that he does not have a power to remove the applicant to a country where he faces a well-founded fear of persecution for Convention grounds, the Minister may later taken a different stance and estoppel will not lie against the Minister.

51    Although the observations in these three cases may appear to go further, it is of significance that they were each made in a different factual context to that of the present case. They should be understood in the context in which they were made - that is, in relation to asylum-seekers who had been found not to be refugees. I do not consider that these decisions stand as authority for the proposition that a person found to be a refugee may be removed from Australia to a country where he faces a well founded fear of persecution on Convention grounds.

52    In NATB, there were four appeals on foot and in each case the appellant had been refused refugee status. The primary dispute between the parties concerned the extent, if any, to which the duty under s 198(6) to remove an unlawful non-citizen from Australia as soon as reasonably practicable allowed an officer to consider the possibility (even certainty) that the unlawful non-citizen will suffer persecution, torture or death in the country to which he or she is removed. At [54] to [59] their Honours observed that ss 48B, 351 and 417 of the Act demonstrated that Parliament appreciated the possibility of a non-citizen being removed to a country where he or she might face such a prospect and sought to deal with it by including these specific provisions.

53    Significantly, in rejecting the appellant's claims the Court noted at [68]:

In substance, the non-refoulement obligation undertaken by States in Art 33 of the Refugees Convention does not apply to the appellants because, under Australian municipal law, they applied in accordance with the Act for recognition as refugees but did not satisfy the Minister or the RRT that they were refugees as defined in the Refugees Convention.

The observations by their Honours at [52] (set out at [43] above) should be seen in this light. The Full Court was dealing with the bounds of whether removal was ‘reasonably practicable” in circumstances where the non-refoulement obligation did not apply to the appellants because they were not found to be refugees.

54    M38/2002 related to an Iranian citizen who had unsuccessfully applied for refugee status. It was found that he did not face persecution in Iran for a ground recognised in the Convention. Notwithstanding the finding that he was not a refugee, the appellant sought injunctive relief arguing that to return him to Iran would be contrary to Australia's non-refoulement obligation. The Full Court explained at [38], that the obligation against non-refoulement only applied to asylum-seekers who are determined to be refugees under Art 1 of the Convention. In the circumstance that the appellant had not been accorded refugee status, their Honours rejected as “misconceived” the proposition that the duty to remove him under s 198(6) was required to be read subject to the non-refoulement obligation.

55    Kumar also related to a person who had unsuccessfully applied for refugee status. The appellant was granted a Bridging (Removal Pending) visa while arrangements were made for his removal from Australia. Some time later the Minister decided that removal was reasonably practicable in accordance with cl 070.511(c)(i) of Schedule 2 of the Regulations, and the appellant’s Bridging visa ceased. The appellant sought orders prohibiting his removal. The Full Court, citing M38/2002 at [70] to [71], identified the considerations relevant to determining when a person’s removal from Australia is “reasonably practicable”. Their Honours did not see Australia’s non-refoulement obligation as a relevant consideration and reached this view in the context that the Minister was seeking to remove a person from Australia who was not a refugee.

56    However, even if this analysis of these three decisions be incorrect, the High Court has more recently dealt with this issue and confirmed that the statutory power to remove a person who has been found to be a refugee is subject to the non-refoulement obligation.

57    In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (“the Malaysian Declaration case”) at 190, [91] Gummow, Hayne, Crennan and Bell JJ explained that:

… the ambit and operation of a statutory power to remove an unlawful non-citizen from Australia must be understood in the context of relevant principles of international law concerning the movement of persons from state to state.

Picking up the words of Art 33(1), their Honours continued and explained at [94] that:

… Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

58    French CJ observed at [54] that:

… If the person is found to be a refugee, then removal under s 198(2) will necessarily have to accord with Australia's non-refoulement obligation.

59    Kiefel J said at [214]:

One of the principal obligations undertaken by the Contracting States to the Convention is that contained in Art 33, which is entitled “Prohibition of Expulsion or Return (‘Refoulement’)”. It requires that a Contracting State not “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. It therefore prohibits a Contracting State from whom asylum is sought from returning asylum-seekers to the country from which they fled and to any other country where they would be exposed to the same harm [citation omitted].

60    This question again came before the High Court in Plaintiff M47/2012 v Director General of Security (2012) 292 ALR 243 (“M47/2012”). In that matter the Court was dealing with a Special Case brought by a Sri Lankan citizen of Tamil ethnicity who had been found to be a refugee within the meaning of the Convention, but who had been refused a protection visa because he was deemed a risk to national security. The case centred on the fact that, although the plaintiff was a refugee, he faced indefinite detention as a result of an adverse security assessment. The result of the adverse assessment, in conjunction with his successful refugee application, meant that he could not be returned to Sri Lanka but would not be released into the Australian community and it was unlikely that another country would be found that was willing to accept him in the foreseeable future.

61    Question 2 of the Special Case enquired:

Does s 198 of the Migration Act 1958 (Cth) authorise the removal of the Plaintiff, being a noncitizen:

2.1    to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

2.2    whom ASIO has assessed poses a direct or indirect risk to security;

to a country where he does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol?

62    Because of the course that the case took, the majority of the Court considered it unnecessary to answer this question. However, Gummow, Heydon and Bell JJ answered the question in the affirmative at [150], [294] and [535] respectively.

63    Gummow J explained at [99]:

The duty of removal carries with it, subject to any express qualification in the Act or the Regulations, the power of selection of the destination to be reached upon removal. However, it follows from determination by the Minister that the plaintiff is one to whom Australia owes protection obligations that it would not be a proper exercise of that power to return the plaintiff to Sri Lanka or to remove him to any other territory where his life or freedom would be threatened on account of his race or political opinion, within the meaning of Art 33(1) of the Convention.

64    Bell J observed at [509] that:

The plaintiff is an unlawful non-citizen whose circumstances bring him within the provisions of ss 198(2) and 198(6). He has made an application for a protection Visa which has been finally determined. The Act does not preclude his removal from Australia to a country in which he does not have a well founded fear of persecution… In the event that an officer purported to remove the plaintiff from Australia to a country in which the plaintiff is at risk of persecution, the determination to do so would be subject to judicial review.

65    Contrary to the applicant’s submissions, the various judgments in the Malaysian Declaration case and M47/2012 indicate that a person found to be a refugee may not be removed from Australia to a country where he or she faces a well-founded fear of persecution for a Convention ground, as to do so breaches Australia’s non-refoulement obligation. I respectfully agree. Further, because of the decision in the Malaysian Declaration case, the Minister now concedes that s 198 does not authorise or require him to remove a person found to be a refugee to any country where he or she has a well-founded fear of persecution for a Convention ground. The Minister made a similar concession in M47/2012: see M47/2012 at [294] per Heydon J.

66    What the applicant means by his contention that, “in reality”, when making his decision to refuse a protection visa the Minister excluded Australia's non-refoulement obligation from his consideration is not clear. It seems to be little more than a version of the argument in Ground 2 that the Minister misunderstood this obligation. I do not accept this contention.

67    In my view the Minister properly understood the non-refoulement obligation and his decision is consistent with it. The immediate effect of the Minister’s decision was that the applicant continued to be subject to mandatory detention in accordance with s 189(1) of the Act, and became subject to being removed from Australia “as soon as reasonably practicable” in accordance with s 198(2A). He remained so subject until he was either removed from Australia or granted a visa.

68    The Minister was correct in stating in the Reasons that the decision to refuse the applicant a protection visa on character grounds was not “in itself” a decision to remove him from Australia. This is so because (at any time prior to removal) it was open to the Minister to exercise his power under s 195A of the Act to grant the applicant a visa of a particular class, if satisfied that it was in the public interest to do so. It therefore cannot be said that a necessary consequence of the decision to refuse the protection visa was that the applicant would be removed to any country, let alone refouled to a country where he faced persecution. The facts of the present case illustrate this as the Minister granted a Bridging Visa to the applicant, which had the effect that he was released from detention and the statutory obligation to remove him from Australia was lifted.

69    Even if the decision to refuse the applicant a protection visa did amount to a decision to remove him from Australia (which it did not), such a decision would not necessarily offend the non-refoulement obligation. The obligation requires that the applicant not be removed to any country where he has a well-founded fear of persecution for a Convention ground. He may, of course, be removed to a “safe” country - that is, a country where he has no well founded fear of such persecution. The Minister was correct in stating in the Reasons that his decision to refuse a protection visa is not “of itself” incompatible with Australia's non-refoulement obligation.

70    Nor is there anything in the applicant’s expressed concern that the Minister may later remove the Bridging Visa under cl 070.511(c) of the Regulations, or reactivate Condition 8541, or seek to rely on Conditions 8542 and 8543 notwithstanding the waiver of Condition 8541, so that the applicant becomes required to facilitate his own removal. Even if the Minister took one of these steps, the situation remains that the Minister has no power under s 198 to remove the applicant to any country where he has a well-founded fear of persecution on Convention grounds.

71    The applicant expressed a related concern that should the Minister take one of these steps there would be no decision made which was capable of review, and the applicant would have no legal recourse to stop his removal. I do not agree. Should he threaten to remove the applicant to a country where he has a well-founded fear of persecution on Convention grounds, the Minister, or his delegate, would be acting in excess of jurisdiction and the applicant could apply to restrain removal by writs of prohibition and certiorari. There is though no such threat at present given the Minister’s concession that he has no power to remove the applicant to any such country, and his stated intention to only remove him to a safe country.

72    It is unnecessary to deal with the Minister’s contentions that even if he did not properly consider Australia’s non-refoulement obligation it did not give rise to jurisdictional error. I dismiss the application and order the applicant to pay the respondent’s costs.

73    Although not applicable to the present case, I also note that notwithstanding the observations in NATB, M38/2002 and Kumar, the law with respect to Australia’s non-refoulement obligations in relation to persons who are not found to be refugees is now different. Since the introduction of s36(aa) of the Act, by the commencement of the Migration Amendment (Complementary Protection) Act 2011 on 24 March 2012, persons who are not refugees under the Convention are able to seek protection on the basis that if they are removed to a particular country there exists a real risk of arbitrary deprivation of life, the death penalty, torture, cruel or inhumane treatment or punishment and degrading treatment or punishment.

Associate:

Dated:    5 February 2013